REQUIREMENTS FOR ADVANCED DIRECTIVES UNDER STATE PLANS FOR MEDICAL ASSISTANCE.

SEC. 4751. REQUIREMENTS FOR ADVANCED DIRECTIVES UNDER STATE PLANS FOR MEDICAL ASSISTANCE. (a) In General.—Section 1902 (42 U.S.C. 1396a(a)), as amended by sections 4401(a)(2), 4601(d), 4701(a), 4711(a), and 4722 of this title, is amended— (1) in subsection (a)— (A) by striking “and” at the end of paragraph (55), (B) by striking the period at the end of paragraph (56) and inserting “; and”, and (C) by inserting after paragraph (56) the following new paragraphs: “(57) provide that each hospital, nursing facility, provider of home health care or personal care services, hospice program, or health maintenance organization (as defined in section 1903(m)(l)(A)) receiving funds under the plan shall comply with the requirements of subsection (w); “(58) provide that the State, acting through a State agency, association, or other private nonprofit entity, develop a written description of the law of the State (whether statutory or as recognized by the courts of the State) concerning advance directives that would be distributed by providers or organizations under the requirements of subsection (w).”; and (2) by adding at the end the following new subsection: “(w) (1) For purposes of subsection (a)(57) and sections 1903(m)(l)(A) and 1919(c)(2)(E), the requirement of this subsection is that a provider or organization (as the case may be) maintain written policies and procedures with respect to all adult individuals receiving medical care by or through the provider or organization— “(A) to provide written information to each such individual concerning— “(i) an individual’s rights under State law (whether statutory or as recognized by the courts of the State) to make decisions concerning such medical care, including the right to accept or refuse medical or surgical treatment and the right to formulate advance directives (as defined in paragraph (3)), and “(ii) the provider’s or organization’s written policies respecting the implementation of such rights; “(B) to document in the individual’s medical record whether or not the individual has executed an advance directive; “(C) not to condition the provision of care or otherwise discriminate against an individual based on whether or not the individual has executed an advance directive; “(D) to ensure compliance with requirements of State law (whether statutory or as recognized by the courts of the State) respecting advance directives; and “(E) to provide (individually or with others) for education for staff and the community on issues concerning advance directives. Subparagraph (C) shall not be construed as requiring the provision of care which conflicts with an advance directive. “(2) The written information described in paragraph (1)(A) shall be provided to an adult individual— 104 STAT. 1388–205 “(A) in the case of a hospital, at the time of the individual’s admission as an inpatient, “(B) in the case of a nursing facility, at the time of the individual’s admission as a resident, “(C) in the case of a provider of home health care or personal care services, in advance of the individual coming under the care of the provider, “(D) in the case of a hospice program, at the time of initial receipt of hospice care by the individual from the program, and “(E) in the case of a health maintenance organization, at the time of enrollment of the individual with the organization. “(3) Nothing in this section shall be construed to prohibit the application of a State law which allows for an objection on the basis of conscience for any health care provider or any agent of such provider which as a matter of conscience cannot implement an advance directive.’5151So in original. Probably should be “directive.”. “(4) In this subsection, the term ‘advance directive’ means a written instruction, such as a living will or durable power of attorney for health care, recognized under State law (whether statutory or as recognized by the courts of the State) and relating to the provision of such care when the individual is incapacitated.5252So in original. Probably should be “incapacitated.”. (b) Conforming Amendments.— (1) Section 1903(m)(1)(A) (42 U.S.C. 1396b(m)(1)(A)) is amended— (A) by inserting “meets the requirement of section 1902(w)” after “which” the first place it appears, and (B) by inserting “meets the requirement of section 1902(a) and” after “which” the second place it appears. (2) Section 1919(c)(2) of such Act (42 U.S.C. 1396r(c)(2)) is amended by adding at the end the following new subparagraph: “(E) Information respecting advance directives.—A nursing facility must comply with the requirement of section 1902(w) (relating to maintaining written policies and procedures respecting advance directives).”. (c) Effective Date.—The amendments made by this section shall apply with respect to services furnished on or after the first day of the first month beginning more than 1 year after the date of the enactment of this Act. (d) Public Education Campaign.— (1) In general.—The Secretary, no later than 6 months after the date of enactment of this section, shall develop and implement a national campaign to inform the public of the option to execute advance directives and of a patient’s right to participate and direct health care decisions. (2) Development and distribution of information.—The Secretary shall develop or approve nationwide informational materials that would be distributed by providers under the requirements of this section, to inform the public and the medical and legal profession of each person’s right to make decisions concerning medical care, including the right to accept or refuse medical or surgical treatment, and the existence of advance directives. (3) Providing assistance to states.—The Secretary shall assist appropriate State agencies, associations, or other private entities in developing the State-specific documents that would be distributed by providers under the requirements of this section. The Secretary shall further assist appropriate State 104 STAT. 1388–206 agencies, associations, or other private entities in ensuring that providers are provided a copy of the documents that are to be distributed under the requirements of the section. (4) Duties of secretary.—The Secretary shall mail information to Social Security recipients, add a page to the medicare handbook with respect to the provisions of this section.